The Dalu debacle: War crimes, damages or regret

Israel’s air strike on Sunday of the Dalu family is a public relations disaster.

Al-Dalu family 390.
(photo credit:REUTERS/Mohammed Salem)

Israel’s air strike on Sunday of the Dalu family is a public relations
disaster.

An Israeli bomb turned an apartment building mostly into a
crater, killing 11 people across several generations, including most of Jamal
al- Dalu’s family.

Initially, media reports indicated that IDF Spokesman
Yoav Mordechai had claimed that a major terrorist commander was killed. But
Palestinian reports surfaced that the sought-after terrorist was still alive and
had not been there.

Later reports had Mordechai saying the incident was
being examined and it was unclear if the terrorist had been killed, injured or
not there at all.

Under the law of armed conflict, if the terrorist had
been on the premises, the IDF might have been able to justify the attack legally
(there can be no possible positive public relations spin) if it could show that
al-Dalu had a high value and that the expected damage to civilians had been
low.

This argument in itself may be problematic in light of the extent of
the damage to the building and the number of civilians killed.

In other
words, it appears from the results that the weapon used was not particularly
light.

So unless there was incorrect intelligence about how many
civilians were in the building or where they were situated, which is quite
possible in an evolving war zone, Israel’s argument is already not
simple.

What if a terrorist was present or the IDF believed there was a
terrorist present and did not expect the extent of the harm to civilians,
essentially eliminating a three-generation family, but it was just wrong about
one of those critical details? This scenario makes the situation all the more
tragic, as the IDF may not even have killed the family, had its information had
been accurate.

In such a situation, it would be almost impossible to
prove any war crimes allegations against those who fired the missile or their
commanders either because they hit a military target or because they genuinely
thought they were hitting a military target.

Also, those who fired the
missile and their commanders may have had intelligence that said, incorrectly,
that there were fewer civilians nearby.

Lawyers call this a “mistake of
fact.” An honest mistake of fact essentially bars any attempt to prove there was
criminal intent, a prerequisite to prove any war crime.

Is that the end
of the story? Probably not. There is a wideranging debate about whether in such
“mistake” situations, there is a legal obligation to pay compensation to the
surviving family members.

Some say there is an obligation, while others
say mistakes, if not negligent and in the “heat of battle,” are just part of war
and states do not need to compensate victims.

The arguments can be much
more complex, but essentially the idea would be that the IDF did not ask for
this war. It views all of its actions as self-defense against rocket
attacks.

From this perspective, Hamas should pay the family since they
were the cause of the war and the need for air strikes in
self-defense.

The response would be that these civilians had nothing to
do with Hamas.

Then they would argue that Israel was the one who killed
the family, making only Israel responsible for compensating the
family.

The pro-compensation side of the argument could point out that
even if a terrorist had been there, the practice of many states is to compensate
civilians in these circumstances even if the harm caused to them might be
justified as “collateral damage” under the law of armed conflict.

The
fact is that in some cases from Operation Cast Lead and other famous instances
of hitting civilians by accident in the past, Israel has side-stepped the legal
question by paying compensation “ex gratia,” or voluntarily above and beyond the
law’s requirements (similar to the Jewish legal term “lifnim mishurat hadin”)
This is a way of showing compassion without admitting fault. Another possibility
is a public statement of regret that still falls short from admitting
fault.

Much of the above is speculative, until hard facts are
collected.

Now, there will likely be a long process to check and confirm
all of the facts and probably a military investigation, but there is a decent
chance that Israel will eventually decide to compensate or express regret to
al-Dalu.